Citation Nr: 1325123 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 11-00 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or being housebound. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from August 1955 to August 1960 and from October 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which denied the claim. The claim is now under the jurisdiction of the Reno, Nevada RO. On his initial VA Form 9, the Veteran indicated that he did desire a Board hearing at the RO. However, in a later December 2010 communication, he indicated that he did not desire a hearing. Thus, the Board considers the initial hearing request to have been withdrawn. In January 2013, the Board remanded this claim for further development and it has since returned for further appellate consideration. FINDINGS OF FACT 1. The Veteran's sole service-connected disability is status-post operative herniated nucleus pulposus, right L5, to include radiculitis of the lower extremities, currently rated as 40 percent disabling. 2. The Veteran is not blind or a patient in a nursing home and his service-connected disability does not render him so helpless as to be in need of regular aid and attendance of another person. 3. The Veteran does not have a single service-connected disability rated at 100 percent and an additional service-connected disability rated at 60 percent or more, and he is not permanently and substantially confined to his immediate premises due to his service-connected disability. CONCLUSION OF LAW The criteria for SMC based on the need for the regular aid and attendance of another person or at the housebound rate are not met. 38 U.S.C.A. § 1114(l), (s) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.350(b)(3), (4), 3.352(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a claim, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Moreover, with regards to the notice requirements pertaining to increased-rating claims, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, not also citation to alternative diagnostic codes (DCs) or potential "daily life" evidence, etc. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, the Veteran was notified of the provisions of the VCAA by the RO in a pre-adjudicatory December 2009 letter. Additional notice letters were sent in January and February 2013. Collectively, those notice letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim. He was also advised as to how disability ratings and effective dates are assigned. After all notice was provided, the AMC readjudicated the claim by way of a May 2013 SSOC. He therefore has received all required notice concerning this claim. VA also fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains the Veteran's service treatment records, service personnel records, and all available VA treatment records. The record also contains his contentions and as indicated, he opted to withdraw his personal hearing request. The Veteran has been examined in connection with this claim, most recently in March 2013. Pursuant to the Board's remand, the AMC, in pertinent part, requested any records of the Veteran from the Social Security Administration (SSA); however, in January 2013, the SSA responded that it had no medical records for the Veteran. Specifically, the SSA indicated that either the Veteran did not file for disability benefits or he filed for disability benefits but no medical records were obtained. Given this negative reply, the Board finds that further requests for these records would be unproductive. The Board therefore is satisfied that VA has provided all assistance required by the VCAA concerning this claim. 38 U.S.C.A. § 5103A (West 2002). The Board has reviewed all of the relevant evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate these claims and what the evidence in the file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Entitlement to SMC SMC is a special statutory award in addition to awards based on the schedular evaluations provided by the diagnostic codes in VA's rating schedule. Claims for SMC, other than those pertaining to one-time awards and an annual clothing allowance, are governed by 38 U.S.C.A. § 1114 (k)-(s) and 38 C.F.R. §§ 3.350 and 3.352. If a Veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance, an increased rate of compensation, i.e., "special" monthly compensation is payable. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). SMC under 38 U.S.C.A. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. The following will be accorded consideration in determining the need for regular aid and attendance: inability of a claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of a claimant to feed him or herself through loss of coordination of the upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his or her daily environment. "Bedridden," i.e., the Veteran is actually required to remain in bed, will be a proper basis for the determination. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. The particular personal functions that the Veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the Veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the Veteran's condition is such as would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a). To alternatively establish entitlement to SMC based on housebound status under 38 U.S.C.A. § 1114(s) , the evidence must show that a Veteran has a single service-connected disability evaluated as 100-percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability, or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). A Veteran is "permanently housebound" when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to service-connected permanent disability or disabilities. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i)(2). For purposes of housebound benefits, the Court has held that being "substantially confined" to the home means an inability to leave to earn an income. Absent a regulation by the Secretary defining the term substantially confined, the Court held that the term may conceivably be more broadly construed. It found that Congress intended to provide additional compensation for Veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income, as opposed to an inability to leave the house at all. Hartness v. Nicholson, 20 Vet. App. 216, 220-22 (2006); cf. Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (substantially confined means the inability to leave the house except in instances of seeking medical treatment). In this case, the Veteran filed a claim seeking entitlement to SMC based on the need for regular aid and attendance or being housebound in November 2009. At the time of his claim, the medical evidence showed various diagnoses, including a back condition (herniated nucleus pulposus with radiculitis), diabetes mellitus, hypertension, dizziness, a cognitive disorder, and psychosis. Although the evidence is unclear as to the exact date of onset, the Veteran suffered a cerebral vascular accident (CVA) in approximately late-2008 and has residual disability. In support of his claim, the Veteran submitted a May 2009 statement from his mental health physician, as well as a VA Aid and Attendance examination report (VA Form 21-2680) which was completed in November 2009. In the May 2009 statement, the Veteran's physician recommended that the Veteran obtain a guardian as he was not capable of managing his money. According to the November 2009 VA Aid and Attendance examination report, the Veteran's diabetes and back pain restricted his activities and function. The Veteran was not confined to a bed. He was able to feed himself. He was not legally blind and did not require nursing home care. He was not able to prepare his own meals, and needed assistance in bathing and tending to other hygiene needs. He required medication management. His posture was noted as "ok." When asked to describe any restrictions of the upper and lower extremities, the physician noted "ok." The physician indicated that the Veteran had limitations affecting his spine, trunk, and/or neck. The Veteran was in need of an assistive device of help of another person when walking one block. The Veteran's diagnoses were listed as diabetes, high blood pressure, and a back disability. In March 2010, the Veteran underwent a VA mental health examination for an unrelated claim. The report shows the following diagnoses: dementia, not otherwise specified (rule out vascular dementia with depressed mood and behavioral disturbance and wondering); alcohol abuse in remission due to controlled environment; and bereavement. An additional VA Aid and Attendance examination was conducted in February 2011. The report indicates that the Veteran was able to feed himself. He was not legally blind and did not require nursing home care. He required help bathing and tending to other hygiene needs, and required medication management. He was not able to prepare his own meals or manage his own financial affairs. His posture and general appearance were described as fair, and his lower extremities as weak. It was also noted that he had pain in his back. He needed an assistive device or the aid of another person when "walking" one block. Pursuant to the Board's January 2013 remand, the Veteran was afforded a VA aid and attendance examination which took place in March 2013. He arrived at the examination via public transportation, along with a nurse's aide. It was noted that he was wheelchair-bound for the last 6 months due to lower extremity weakness after a stroke years prior. He reported never having dizziness. He had mild (occasional) memory loss. His imbalance affected his ability to ambulate. His leg weakness made him wheelchair bound. He required assistance when dressing, bathing, and cooking. The examiner noted the Veteran required a wheelchair, and used a walker. He left his home for medical care only. His best corrected vision was not 5/200 or worse in both eyes. He did not have any cervical spine limitation of motion or deformity. His range of motion in the lumbar spine was moderately limited by stiffness and pain. His lower extremities did not function normally as he had muscle weakness in both legs. His weight bearing was normal. His upper extremities functioned normally. He had weak propulsion and an unsteady gait/balance. He knew the amount of his benefit payment and monthly bills. He did not prudently handle his payments. He did not personally handle his money or pay his own bills. He was declared incompetent through a mental examination by the VA in the past due to dementia. Diagnoses were lumbar spine degenerative disc disease, status-post laminectomy; type II diabetes mellitus, diabetic nephropathy; diabetic peripheral neuropathy; status-post CVA with leg weakness, and hypertension. The examiner indicated that the Veteran's most significant disabilities are due to his prior stroke with residual leg weakness causing him to be wheelchair-bound. For further clarification, the March 2013 VA examiner provided an addendum in the same month. He stated that the Veteran, as a result of his service-connected disability, is not under an incapacity that requires care and assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. The examiner stated further that the Veteran's service-connected disability does not cause the inability to dress himself or to keep himself ordinarily clean and presentable, and does not cause the Veteran to frequently need adjustment of any special prosthetic or orthopedic appliance which by reason of a particular service connected disability cannot be done without aid. The Veteran's service-connected disability also does not cause the inability to feed himself through the loss of coordination of upper extremities or through extreme weakness, or the inability to tend to the wants of nature. The Veteran is not bedridden on account of his service-connected disability. The examiner reiterated that most of the Veteran's significant disability is due to his stroke with residual leg weakness causing him to be wheelchair-bound. The examiner determined that the Veteran's symptoms related to his service-connected back disability are clinically not significant, as compared to his stroke residuals. After reviewing the claims folder in its entirety, the Board concludes that the criteria for the award of SMC based on the need for regular aid and attendance or being housebound are not met. The Veteran does not contend, nor does the evidence show, that he has service-connected anatomical loss or loss of use of both feet or of one hand and one foot, or blindness or has visual acuity of 5/200 or less in both eyes. He is not a patient in a nursing home. Moreover, the Veteran does not establish a factual need for aid and attendance due to a service-connected disability. In this case, service connection is in effect for only one disability, a back disability characterized as status-post operative herniated nucleus pulposus, right L5, to include radiculitis of the lower extremities. Although such disability has some effect on his physical capabilities, they are not so severe as to require aid and attendance. That is, the March 2103 examiner attested to the fact that the Veteran's service-connected back disability alone has not rendered him unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself, to attend to the wants or nature, or that his service-connected disability require the need of adjustment of any special prosthetic or orthopedic appliance or result in other incapacity that requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. See 38 C.F.R. § 3.352(a). Though it is recognized that the Veteran requires the assistance of a caregiver, the evidence does not establish that such assistance is required because of his service-connected back disability. The November 2009 and February 2011 examination reports indicate that the Veteran needed assistance in bathing and tending to other hygiene needs and was in need of an assistive device of help of another person when walking one block. He required medication management and was not able to prepare his own meals or manage his own financial affairs. However, the evidence does not support a finding that this impairment was due primarily to his service-connected low back disorder. Indeed, the March 2013 VA examiner specifically stated that the Veteran's significant disability is due to his CVA with residual leg weakness causing him to be wheelchair-bound and noted that the symptoms of his service-connected back condition are not as clinically significant. Notably, the Veteran is not service-connected for his CVA or any of its residuals. The evidence also shows that the Veteran needs assistance due to his psychiatric and cognitive disorders, and similarly those disabilities are not service-connected. Furthermore, though the Veteran has been deemed incompetent to manage his VA funds, the evidence shows that it is not due to his service-connected back disability. Consequently, it is not established that the Veteran's service-connected disability renders him unable to attend to the needs of daily living without the regular aid and assistance of another person. Accordingly, the Board concludes that the requirements for SMC based upon the need for regular aid and attendance of another person have not been met. The Board also considered whether the Veteran is housebound. 38 C.F.R. § 3.351(d). However, the evidence does not reflect that his service-connected back disability requires that he remain in bed. Even still, a single disability rated 100 percent is a threshold requirement for housebound status and the Veteran's service-connected back disability is rated only as 40 percent disabling. Therefore, the criteria for housebound status based on separately ratable 100 and 60 percent disabilities cannot be satisfied as a matter of law. The Board concludes that the criteria for SMC based on housebound status also are not met, and the claim must be denied in this regard as well. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). For the reasons and bases discussed, the preponderance of the evidence is against this claim for SMC, whether based on the purported need for regular aid and attendance of another person or on account of being housebound due to his service-connected back disability. And since the preponderance of the evidence is against this claim, there is no reasonable doubt to resolve in the Veteran's favor, in turn requiring denial of this claim. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1991). ORDER The claim for SMC based on the need for regular aid and attendance or on account of being housebound is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs